Henry v. Cain et al
Filing
16
ORDER & REASONS denying 15 Motion to Appoint Counsel. Signed by Magistrate Judge Karen Wells Roby on 7/8/16. (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DUANE HENRY
CIVIL ACTION
VERSUS
NO. 15-5011
N. BURL CAIN, WARDEN
SECTION “S”(4)
ORDER AND REASONS
Before the Court is the petitioner Duane Henry’s Motion for Appointment of Counsel
(Rec. Doc. No. 15) seeking counsel to assist with his federal habeas petition. Henry asserts that
the claim challenging his unconstitutional life sentence warrants appointment of counsel.
Despite his suggestion to the contrary, Henry’s case is a non-capital proceeding. It is well
settled that a petitioner has no right to appointment of counsel in a non-capital federal habeas
proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); see also Wright v. West, 505
U.S. 277, 293 (1992) (no constitutional right to counsel in habeas corpus proceedings); Santana v.
Chandler, 961 F.2d 514, 516 (5th Cir. 1992); Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir.
1992); Ortloff v. Fleming, 88 F. App’x 715, 717 (5th Cir. 2004). The benefit of appointed counsel
is only required when the Court determines that an evidentiary hearing is to be held on an initial,
non-capital § 2254 petition. See Rule 8(c), Rules Governing § 2254 Cases; Urias v. Thaler, 455
F. App’x 522, 523 (5th Cir. 2011). Henry’s petition does not warrant an evidentiary hearing under
28 U.S.C. § 2254(e)(2). 1 See Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016); see also,
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28 U.S.C. § 2254(e)(2) provides as follows:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the
court shall not hold an evidentiary hearing on the claim unless the applicant shows that -(A) the claim relies on -- (i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate
that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence
that but for constitutional error, no reasonable factfinder would have found the applicant guilty of
the underlying offense.
Williams v. Taylor, 529 U.S. 420, 432 (2000) (“failed to develop” means a “lack of diligence, or
some greater fault, attributable to the prisoner or the prisoner’s counsel.”).
The Court also may appoint counsel if the interests of justice so require. See 18 U.S.C. §
3006A; 28 U.S.C. § 1915(e)(1); Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985) (“This court
appoints counsel to represent a person seeking habeas corpus relief when the interests of justice so
require and such person is financially unable to obtain representation.”); accord, Hulsey v. Thaler,
421 F. App’x 386, 388 n.5 (5th Cir. 2011) (assuming without deciding that ' 3006A “in fact applies
wholesale to non-capital habeas cases such as this.”). However, “[i]f the matter can be resolved
on the basis of the record and the pleadings submitted by the parties, the interests of justice do not
require the appointment of counsel.” Jackson v. Warden, West Monroe City Jail, No. 06-1425,
2006 WL 4041524, at *2 (citing United States v. Vasquez, 7 F.3d 81 (5th Cir. 1993)).
The Court can and will resolve the case based on the record and applicable Supreme Court
law upon receipt of the supplemental briefing ordered from the State. See Rec. Doc. No. 16. The
issues before the Court, while significant, are not so complex to warrant appointment of counsel.
The Court does not find that the interests of justice dictate appointment of counsel at this time.
See Wardlaw v. Cain, 541 F.3d 275, 279 (5th Cir. 2008); Reese v. Cain, No. 07-30027, 2008 WL
344765, at *2 (5th Cir. Feb. 7, 2008). Accordingly,
IT IS ORDERED that Henry’s Motion to Appoint Counsel (Rec. Doc. No. 15) is
DENIED.
New Orleans, Louisiana, this 8th day of July, 2016.
______________________________________
KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE
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